Predating the explosion of angst against SOPA and PIPA was all the screaming, moaning, and hand-wringing over the National Defense Authorization Act for Fiscal Year 2012 – specifically those sections dealing with detainee matters.
Hordes of people, on the Left and the Right, were screaming about how those sections of the NDAA 2012 would allow the government to indefinitely imprison Americans without charges or trial – a gut shot to the Constitution.
Truth be told, I was close to being one of them. The only reason that I didn’t join in the ranting was that there were two versions of the bill in question, one in the House and one in the Senate, and both were being rewritten and reworded too rapidly for me to keep up with them.
When you have to redo a draft post three times in five days, it’s time to step back and wait till things settle – if one cares at all about posting reasonably accurate information.
By the the time the dust settled the issue was laid to rest, despite Obama’s campaign statement upon signing the NDAA 2012 into law.
My administration will not authorize the indefinite military detention without trial of American citizens … Indeed, I believe that doing so would break with our most important traditions and values as a nation.
— President Obama, January 1, 2012
NDAA 2012 Signing Statement
The dangerous language that had been in earlier, working versions of both the House and Senate versions of the bill was removed and specific exceptions for American citizens, legal residents, and anyone apprehended within US borders were coded into the final, Enrolled bill which Obama signed into law at the beginning of the year.
Yet the insanity continues, further fueled by Obama’s useless signing statement, as if these very much needed corrections were never made. Disinformation continues to be spread and the ignorant masses keep lapping it up.
Affirmation of Authority of the armed forces of the United States to detain covered persons pursuant to authorization for use of military force
AUTHORITIES. — Nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States.
— NDAA 2012 p. 265
Under NDAA 2012 the US military still doesn’t have the right to indefinitely detain any US citizen or legal resident. It wasn’t even granted the right to indefinitely detain illegal aliens who are captured or arrested within US borders.
NDAA 2012, Title X, Subtitle D, SEC. 1022
Requirement for military custody
(b) APPLICABILITY TO UNITED STATES CITIZENS AND LAWFUL RESIDENT ALIENS.—
(1) UNITED STATES CITIZENS. — The requirement to detain a person in military custody under this section does not extend to citizens of the United States.
(2) LAWFUL RESIDENT ALIENS. — The requirement to detain a person in military custody under this section does not extend to a lawful resident alien of the United States on the basis of conduct taking place within the United States, except to the extent permitted by the Constitution of the United States.
— NDAA 2012 p. 266
The NDAA 2012 has not in any way called for the requirement of military custody of American citizens or expanded those requirements for legal residents.
But over three weeks after the NDAA 2012 was signed into law and longer since its final version was enrolled people are still ranting and raving over it – all of them referencing admittedly heinous verbiage that was in earlier versions of the bills.
Yes! Earlier versions of the NDAA 2012 included some of the most dangerous language I’ve seen in proposed legislation and, again yes, that language was made even more chilling in context due to some of the rhetoric by individual legislators who obviously didn’t want to abide by the Constitution and had no qualms about “disappearing” American citizens.
Those dangerous and unconstitutional provisions did not, however, survive the final writing of the law. Let me repeat that – Those dangerous and unconstitutional provisions did not survive the final writing of the law
If one wants to continue complaining about the NDAA 2012 and not look like an idiot while doing so, different arguments will have to be raised.
Possibly Valid Complaints
Depending upon your sensibilities the complaints below would still be valid:
NDAA 2012 keeps Gitmo open and prevents Obama from moving detainees into the US civilian prison or courts systems
NDAA 2012 calls for detention of enemy combatants until the end of hostilities, which is an unforeseen and unforeseeable date in the War on Terror
NDAA 2012 could be interpreted as formally legalizing Extraordinary Rendition
But, for the sake of providing some evidence that the American people aren’t a ignorant as many claim us to be, quit ranting about things – no matter how horrific they were – that never saw the light of day as law.
In 2008 then-Senator Barack Obama ran a successful campaign again his lame duck predecessor, President George W. Bush, largely focusing on the “evils” of President Bush’s methods of prosecuting the War on Terror.
Since his election, however, President Obama has had to quietly renege on his not-quite-promises to change how America defended itself, its interests, and its allies and has had continue as Bush started.
Sadly for Obama, there reaches a point where one cannot do things quietly and cannot easily find someone else to blame for having to make hard, dirty, and imperfect decisions because necessity’s cold wisdom demands them and allows no alternatives.
President Barack Obama said Monday that the United States will resume using military commissions to prosecute alleged terrorists held at the Guantanamo Bay, Cuba, detention facility.
The announcement said the Obama administration remains committed to closing the controversial detention facility, but will rescind its previous suspension on bringing new charges before military commissions.
The commissions are military proceedings rather than trials in civilian courts. In an executive order accompanying his announcement, Obama also authorized prosecuting Guantanamo detainees in U.S. criminal courts, when appropriate.
Obama previously pledged to close the Guantanamo Bay facility within a year of taking office in January 2009. However, it remains open today due to legal complexities involving the status of some detainees and congressional opposition to holding trials for high-profile suspects in U.S. criminal courts.
Shortly after Obama’s announcement, Defense Secretary Robert Gates announced the withdrawal of his prior suspension of new charges before military commissions.
Crow is never a tasty meal and having serve yourself up steaming platter of it and choke it down while in public is one of least pleasant things any person may have to do in the course of his or her life. Being the POTUS and having to do it before the whole world at the start of your re-election campaign would have to make it even worse.
I could gloat and chortle over how this will hurt Obama in the 2012 elections. I choose not to do so. On the issue of Gitmo I believe Obama was sincere, ignorant but sincere.
I derive little or no pleasure in watching Obama have to publicly abrogate his principles under the harsh pressures of reality.
Frankly, this was the best decision that Obama has made since he was elected. It was not only the first he acted like an American President, it was the first time he truly acted like and American man.
This is not because using the military commissions to try these vermin is a decision I agree with, though I do. It’s not even that using the military commission is intrinsically a good thing either geopolitically or ethically. It is because all other options are worse and worse by orders of magnitude.
In the ongoing struggle of the Liberals against the now past administration of President George W. Bush the argument over the interrogation of the terrorists held at the Guantanamo Bay Detention Facility (Gitmo) continues to rage. The Liberals are determined to see President Bush, Vice-President Cheney, and a host of other Americans tried for the crime of torture.
Conservatives are similarly determined that, if these people are tried on the charges of torture, then Speaker of the House Nancy Pelosi and a number of other Democrats who knew of the techniques being used and failed to dissent despite having oversight of the proceedings are tried as well.
Since both sides – Liberal and Conservative – of the argument are trying to use the law to attack their enemies, it behooves us to know that law. Under United States law torture is a federal crime and is defined under Title 18, Part I, Chapter 113C of the US Code:
(1) “torture” means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control;
(2) “severe mental pain or suffering” means the prolonged mental harm caused by or resulting from—
(A) the intentional infliction or threatened infliction of severe physical pain or suffering; (B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality; (C) the threat of imminent death; or (D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality; and
(3) “United States” means the several States of the United States, the District of Columbia, and the commonwealths, territories, and possessions of the United States.
(a) Offense.— Whoever outside the United States commits or attempts to commit torture shall be fined under this title or imprisoned not more than 20 years, or both, and if death results to any person from conduct prohibited by this subsection, shall be punished by death or imprisoned for any term of years or for life.
(b) Jurisdiction.— There is jurisdiction over the activity prohibited in subsection (a) if—
(1) the alleged offender is a national of the United States; or (2) the alleged offender is present in the United States, irrespective of the nationality of the victim or alleged offender.
(c) Conspiracy.— A person who conspires to commit an offense under this section shall be subject to the same penalties (other than the penalty of death) as the penalties prescribed for the offense, the commission of which was the object of the conspiracy.
Nothing in this chapter shall be construed as precluding the application of State or local laws on the same subject, nor shall anything in this chapter be construed as creating any substantive or procedural right enforceable by law by any party in any civil proceeding.
Read the law as it is written above (please, refer to the source for proof) and either weep, rage, or laugh as it pleases you to do. Anyone’s hope of prosecuting anyone involved in what happened at Gitmo is in vain, dashed to oblivion upon the reality of American law.
Let us start with the legal definition of torture. The “enhanced interrogation techniques” used at Gitmo do not meet the legal definition of torture under Title 18, Part I, Chapter 113C, § 2340 of the US Code. The US Code specifically defines torture as an “an act committed by a person acting under the color of law.”
To the best of my knowledge and the consternation of many Liberals, nothing done at Gitmo was being done under the Color of Law. Everything done at Gitmo was extra-judicial in nature and therefor nobody was operating under the Color of Law.
Then there’s the specifics of the offense of torture. The “enhanced interrogation techniques” used at Gitmo do not meet the legal definition of torture under Title 18, Part I, Chapter 113C, § 2340A of the US Code. The US Code specifically define a person subject to being charged with the offense of torture as, “Whoever outside the United States commits or attempts to commit torture….” This means that the statute only applies to actions that take place outside of America.
The detention facility at Guantanamo Bay is a US possession and therefor qualifies as being within the United States per Title 18, Part I, Chapter 113C, § 2340 of the US Code. Nobody at Gitmo was outside of the United States for the purposes of the statute and so they cannot be charged under it.
So…we can’t prosecute anyone under US law for “torturing” the illegal combatants and terrorists held at Gitmo. US law is written in such a way as to prevent this from happening.
I’m fairly sure I’ll be labeled as a racist for this statement, But Pres. Obama has shown himself to be nothing more than a spiteful little boy. A spiteful little boy who chooses to lash out at those who fail to give him whatever he wants.
I guess our new President expected the rest of the country to accept his mandate like his devoted followers have done.
As part of President Obama’s efforts to close the US detention facility at Guantanamo Bay (Gitmo) and release the various terrorists held therein, he asked the Us Military to delay their trial of Abd al-Rahim al-Nashiri, the Al-Qaeda terrorist leader who is alleged to have orchestrated the 2000 bombing of the USS Cole that killed 17 U.S. sailors in Yemen.
The US military refused this request. The judge in the tribunal , Army Col. James Pohl, said it was a difficult but necessary decision to refuse the President’s request. The tribunal must move forward to protect “the public interest in a speedy trial” – as is required under the 6th Amendment of the US Constitution.
President Obama’s response to being balked by US military was to have all the charges against the terrorist, Abd al-Rahim al-Nashiri, dropped. It was arranged for Susan Crawford, the retired judge and political appointee who oversees the commissions, to issue a ruling overriding Col. Pohl and dismissing without prejudice all charges against al-Nashiri.
Spiteful – that’s the only word for it. When he’s defied by the Military courts, he simply lashes out to punish them without care for the damage he causes.
The President – in what must be an excess of either stupidity or arrogance – then tried to invite the families who lost loved ones in the Cole bombing to the White House on Friday, February 6, 2009. Few if any were reported to be pleased with invitation and many refused to meet with President Obama at all, or help him smooth over this atrocity.
My son was blown up along with 16 others. I buried body parts for three years. I’m still suffering and now he’s withdrawing the charges?
There’s nothing he can say to make me feel better. He may be the President but he’s wrong.
“He may be the President but he’s wrong.” Obama may also be the Commander in Chief, but he’s done little or nothing to inspire the US Military’s support or loyalty. He may be the “leader of the free world” but he’s nothing but a spiteful little boy.